The Convention on the Rights of Persons with Disabilities (CRPD), which was adopted in 2006, 40 years after the adoption of the International Covenant of Civil and Political Rights (ICESCR). The ICESCR does not specifically mention disability, its rights are to be exercised without discrimination on the grounds of ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (preamble). Although such anti-discrimination provisions are broad enough to encompass disability, achieving equality and full participation for people who are disabled (PWD), conceptions of discrimination applicable for race and religion may not address the particular barriers that are faced by PWD. For the first time the CRPD makes it clear that the rights of disabled people are human rights, and this includes the Right to Work for PWD.
Article 6 and 7 of ICESCR had already created a right to work, which is a right to the opportunity to earn a living by undertaking decent work, in safe and healthy working conditions, with sufficient pay to support a family. Whilst it specifically mentions gender equality, it is silent on disability. It tasks State Parties with taking steps to realise the right to work through policies, techniques, guidance and programmes that secure full employment and access to employment.
What is different about the right under article 27 CRPD is that it addresses employment discrimination against people who are disabled as a human rights issue and it specifically includes provisions that tackle direct and indirect discrimination against people who are disabled, permits positive discrimination in the form of affirmative action 27 (1) (h), promotes inclusion and accessibility 27 (1) and the introduces the concept of ‘reasonable accommodation’ for people who are disabled (27 (1) (i).
The UK ratified the CRPD in 2009. At that time the Disability Discrimination Act 1995 (DDA) was in force. The DDA already contained a provision for reasonable accommodation: the provisions on ‘reasonable adjustments’ which made a failure to make reasonable adjustments an act of discrimination. It also included ‘disability related discrimination’, a provision that became ineffective following the infamous case of London Borough of Lewisham v Malcolm [2008] UKHL 43.
According to Office for National Statistics. Labour Force Survey, Q2 2016; 2016, cited in the government Green Paper ‘Improving Lives The Work, Health and Disability Green Paper’ (2017: 4), only 48% of working aged PWD are employed compared with 80% of non-disabled people and PWD work in lower paid and part time work than non-disabled people. A situation the Green Paper describes as ‘an injustice we must address’ (2017: 5).
Despite legislation the human rights of PWD are not being respected. The Green Paper is a consultation document which sets out the state of affairs as it sees it and seeks views on how to redress this ‘injustice’. Disability Rights organisation consistently call for greater inclusion, for more support in work and when finding work. For example, Disability Rights UK is demanding increased funding for the Access to Work scheme, awareness raising about the scheme and greater transparency in how decisions on eligibility are made.
Certainly, work needs to be more inclusive. However, is it is necessary to create separate rights for people who are disabled? Would it be more productive, effective and inclusive to universalise these rights? Just as providing ramps and accessible buses has benefited the wider population, for example pram pushers, so the universalisation of reasonable accommodation for temporary or more minor impairments may benefit the world of work as a whole. PWD would not be seen as a special case, with the risk that employers would view them as more costly. Perhaps also the need to define people as ‘disabled’ may also diminish, and PWD would be removed from the burden of proving that their condition meets the legal definition of disability necessary to qualify for employment protection.
A case for universaling the right to work for PWD has been made by Einat Albin in ‘Universalising the Right to Work of Persons with Disabilities: An Equality and Dignity Based Approach’.
The Right to Work for People who are disabled 